jeudi 20 novembre 2014

Why I disagree with Professor Paul Daly's view on the standard of review applicable to procedural fairness issues

If you read my Veille juridique posts every Saturday you know that I hold Professor Paul Daly in very high regard and that I appreciate his work very much. Notwithstanding that, we recently had a friendly "twitter war" over the issue of the standard of review to be applied to procedural fairness issues in administrative law. It is precisely because I very rarely disagree with him on issues of administrative law that I decided to write the present post to explain my view on the question. I apologize in advance for the length of this post, but there was a lot of background to cover.

My feelings on administrative law in general

Let's start at the beginning. A fair number of you, I'm presuming based on your interpretation of my blawg posts on the topic, believe that I dislike administrative law. Let me assure you that is not the case. Quite the opposite.

Not only was administrative law my favourite topic in law school, but I represented Queen's University at the Laskin moot in 2000 (for those of you that do not know, the Laskin moot is an annual national bilingual moot court competition in Canadian administrative and constitutional law... and for my money the best moot in the country). I loved the experience so much, I came back as a factum and oral argument judge in 2002 and have never left. I've been a trustee of the Laskin for a few years now and, with my colleague David Grossman, authored the Laskin moot problem for the last two years (the wonderful Olga Redko being a co-author as well this year).

I don't dislike administrative law, I love it.

What I dislike with a passion...check that, what I hate with a passion is the reasonableness standard of review.

Administrative tribunals were created for a number of reasons, but the principal reasons are (a) accessibility and proper administration of justice and (b) expertise. It is simply not feasible to have judicial courts hear every possible type of proceeding or contestation - nor would that be efficient - such that it made perfect sense to create specialized tribunals to hear certain matters. Moreover, that system would make no sense if one could systematically appeal or seek judicial review on a correctness standard of all administrative decisions.

As such, in the good old days (damn I'm old now), the rule regarding deference was simple and logical: on issues where the administrative tribunal had particular expertise, its decision would be owed deference. On other matters, it would not.

I say the rule was simple, but that's only in theory. The actual application of that rule proved quite messy and opened up correctness review in a significant number of cases, which kind of defeated the purpose of creating administrative tribunals in the first place. So courts started tinkering. A lot. Too much. Way too much.

My beefs with Dunsmuir

I don't have the time to go into the full history of administrative law in Canada (nor do I think you would care for me to do so), but things culminated recently with the Supreme Court rendering its decision in Dunsmuir v. New Brunswick (2008 SCC 9). In that decision, the Supreme Court reduced the number of standards of review from three (correctness, reasonableness simpliciter and manifest unreasonableness) to two (correctness and reasonableness). Moreover, it essentially stated that reasonableness is the standard of review applicable to most issues, correctness applying only to a precious few number of issues (leading even Professor Daly himself to ponder where correctness still applies).

Two important issues there for me.

First, while it might seem to you that the Supreme Court, in Dunsmuir, got rid of the manifestly unreasonable standard and kept correctness and reasonableness, I don't believe that is what happened. Why? Because reasonableness is defined in an extremely broad manner now. A reasonable decision is, according to the Supreme Court, a decision that "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (my emphasis). As such, a reasonable decision is one where the outcome - not the reasoning or the analysis - is one of the acceptable possible outcomes, i.e. the analysis might be completely wrong, but the actual outcome still reasonable (see Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, paras. 13-15).

That my friends is a very hard test to beat. To succeed on judicial review on a standard of reasonableness, you must demonstrate to the reviewing Court that the outcome could not possibly be arrived at. You know what I call such a decision? A manifestly unreasonable decision...

In my reading, the Supreme Court didn't get rid of manifest unreasonableness in Dunsmuir, it got rid of reasonableness.

Second, because the Supreme Court placed almost all issues under the ambit of the reasonableness standard of review, it officially signaled and confirmed that - in administrative law - it is perfectly acceptable for decisions to be wrong, as long as they are not horribly wrong.

Look, I get the policy reasons that lead our Courts to place the efficiency of the system over the importance of getting it right. I really do. Doesn't mean I like it. In fact, I believe a tiny bit of the soul of every jurist dies whenever he's told that, yeah, the decision is probably wrong, but it's not unreasonable.

So if you ask me why I don't practice much administrative law notwithstanding my love for it, that's the reason. I can't stand to be involved in a process that affects people's rights and lives - sometimes significantly - and where getting the right decision rendered is not the most important consideration.

But I don't, because as much as I don't like where the policy considerations have taken Canadian administrative law, I accept it. I don't have a choice mind you, but I accept it.

Before moving on, let me open a parenthesis to pre-emptively respond to those who are reading this and believe I'm criticizing administrative tribunals or judges. I'm not. I'm criticizing the process to review their decisions. I have no issue with the qualifications of the administrative judges I have argued before in my now not so short career. They are good judges, just like the judges at the Court of Québec or the Superior Court are good judges. No issue there.

But being a good judge doesn't mean your decisions should not be scrutinized and susceptible of reversal if incorrect. That is my beef. All judges get it wrong sometimes. It can't be avoided.

Procedural fairness

If I have come to terms with the new reasonableness standard of review in administrative law, why this rambling post? Great question.

Well, because the already small category of issues where correctness still applies as a standard of review is under full frontal attack and is fast eroding.

I'm opening another parenthesis to ask you to think about that for a moment. Please, humour me. Deference originally existed for administrative decisions because of the expertise of the decider over a given issue. Now, we give more deference to a decision rendered by an administrative judge on a constitutional issue, than to a decision on a constitutional question rendered by a Superior Court judge.

That is right my friends, the Court designated in the constitution is treated as if it has less expertise about the constitution than an administrative tribunal.

My head hurts.

Again, I get the policy reasons, but the result is still - to me - just plain wrong.

Now, it seems, it is procedural fairness' turn. While procedural fairness issues have always been reviewed pursuant to the correctness standard, that might be coming to an end. Indeed, respected Federal Court of Appeal Justice David Stratas, in two recent decisions (in Maritime Broadcasting System Limited v. Canadian Media Guild (2014 FCA 59) - where he was in the minority on the issue - and in Forest Ethics Advocacy Association v. National Energy Board (2014 FCA 245) - where he wrote the unanimous opinion of the Court), advocated for the application of the reasonableness standard of review to matters of procedural fairness.

Let's get this out of the way now: Justice Stratas and Professor Daly know more - a lot more - than I do about administrative law. It's not even close. So please don't waste your time pointing out that they have more expertise on the topic than I do, or for that matter that their opinion is more important than mine on the issue. I know that.

I still disagree with the approach. Vehemently.

Procedural fairness, by its very definition, sets out the minimal procedural safeguards to be given to the parties in a given case. Its content varies significantly depending on the circumstances, but it always remains that: the minimum procedural protection a party is entitled to in the process. Here is what the Honourable Justice L'Heureux-Dubé said about procedural fairness in Baker v. Canada (Minister of Citizenship and Immigration) ([1999] 2 SCR 817):

22Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

By definition, a process that contravenes the applicable rules of procedural fairness is unfair. That is why a breach of procedural fairness does not (save very exceptional circumstances) entail the reversal of a decision, but its annulment. A breach of procedural fairness doesn't mean that a decision is wrong, it means that the process is wrong and unfair. To put it another way: the fact that a party is not afforded the opportunity of being heard means that the process is fundamentally vitiated, not that the ultimate decision did not reach the right result.

That is why, in my view, an administrative decision rendered where the process is wrong and unfair can never stand. As such, I can't accept that the standard of review would be reasonableness. With all due respect, that would be going too far.

As my colleague David Grossman once put it to me, we can never as lawyers guarantee any specific outcome to a client. We can't even guarantee to our clients that a Court or a Tribunal will actually render a decision that will put an end to the dispute. We can guarantee only one thing: he or she will get a chance to be heard. That's it.

He's right.

That's how much procedural fairness means. It's the only thing we should always be able to guarantee.

As Professor Daly recently pointed out, the Supreme Court applied the correctness standard to procedural fairness issues this year in Mission Institution v. Khela (2014 SCC 24), although it does not seem the argument was presented to it regarding a possible application of the reasonableness standard of review.

I can only hope that the law on this point does not change. To my mind there are simply issues on which a decision that is wrong cannot be allowed to stand, and procedural fairness is one of them. Every party to administrative proceedings must be guaranteed the right to be heard.

For some issues, getting it right still matters more than anything else. It has to.